This is a real grey area. Durable powers of attorney allow the agent to make financial and legal decisions. Health care proxies or powers of attorney for health care (the names are different from state to state) empower the agent to make medical decisions. However, decisions on where someone lives seem to fall in the middle, not covered by either appointment.
So, given the circumstances, nursing facilities are likely to require a guardianship appointment. If no one involved wants to pursue this, perhaps the nephew should make a report to the local elder protective services unit, which could then pursue such an appointment. Though then the family would have no control over who is appointed.
Read more on these topics in the following:
- The Ins and Outs of Guardianship and Conservatorship
- Health Care Proxy: Who Makes Medical Decisions If You Can't?
Harry S. Margolis practices elder law, estate, and special needs planning in Boston and Wellesley, Massachusetts. He is the founder of ElderLawAnswers.com and answers consumer questions about estate planning issues here and at AskHarry.info.
